M21-1MR, Part III, Subpart v, Chapter 1, Section F
Section F. Homicide
Overview
In this Section
/ This section contains the following topics:Topic / Topic Name / See Page
21 / General Information on Cases Involving a Homicide / 1-F-2
22 / Developing for a Claim When Death Is a Homicide / 1-F-4
23 / Facts to Be Considered In a Wrongful and Intentional Killing / 1-F-6
24 / Effect of Judicial Proceedings on a Department of Veterans Affairs (VA) Determination / 1-F-9
25 / Handling Effects of Adverse Determinations / 1-F-11
26 / Effect of an Insurance Interpleader on Claims for Other Benefits in Cases Involving Homicide / 1-F-15
21. General Information on Cases Involving a Homicide
Introduction
/ This topic contains general information on handling cases involving a homicide, including information on- the effect of a homicide determination on the right to benefits
- responsibility for making a homicide determination
- participation in a wrongful and intentional killing, and
- language for denial letters.
Change Date
/ March 7, 2006a. Effect of a Homicide Determination on Right to Benefits
/ Whether or not a claimant or beneficiary wrongfully and intentionally caused the death of a veteran or another beneficiary is a question of fact that affects the right of a claimant to Department of Veterans Affairs (VA) benefits.b. Responsibility for Making a Homicide Determination
/ It is the responsibility of authorization to make a homicide determination for approval by the Veterans Service Center Manager (VSCM), who may delegate this authority to a supervisor not lower than a coach.Reference: For more information on preparing administrative decisions, see M21-1MR, Part III, Subpart v, 1.A.2.
Continued on next page
21. General Information on Cases Involving a Homicide, Continued
c. Participation in Wrongful and Intentional Killing
/ Do not pay benefits to a claimant if it is an established fact that the claimant wrongfully and intentionally- took the life of a veteran or beneficiary
- encouraged or induced another to take the life of a veteran or another beneficiary
- participated as an accomplice in the homicide
- assisted in the planning or preparation leading to the homicide, or
- otherwise aided and abetted the person causing the death.
Justification or excuse may be found if it is established that the death was
- the result of
self-defense, or
- committed while the claimant was insane.
d. Language for Denial Letters
/ Avoid any reference or charge of guilt or implication in the homicidal death of the veteran in the disallowance letter. Use the following language:“Based on the available evidence, we find the veteran’s death was incurred under circumstances that prevent payment of VA benefits to you based on that death.”
22. Developing for a Claim When Death Is a Homicide
Introduction
/ This topic contains information on development when a claim is received and death is a homicide. It includes information on- determining if a claimant was implicated in the death of a beneficiary
- obtaining evidence regarding homicide
- corresponding with the claimant or persons outside VA
- handling evidence or information connecting the claimant with the homicide, and
- obtaining information from record testimony.
Change Date
/ March 7, 2006a. Determining If a Claimant Was Implicated in the Death of a Beneficiary
/ If the available evidence indicates that the death of the veteran or a beneficiary is the result of a homicide, determine whether or not the claimant was implicated in the death before authorizing payment of death benefits.Important: Do not develop for further evidence if it can be determined by inquiry to the local sheriff or police that the claimant was not or could not have been implicated in the homicide. This may be true even if the person or persons responsible for the death is unknown.
b. Obtaining Evidence Regarding Homicide
/ Typically, evidence required to make a determination can be obtained through correspondence with any of the following sources:- police
- sheriff
- medical examiner
- prosecuting attorney
- clerk of the court, or
- other persons having knowledge of the circumstances.
Reference: For more information on field examinations, see M21-1MR, Part III, Subpart vi, 8.7 (TBD – M21, Pt III, 8.02).
Continued on next page
22. Developing for a Claim When Death Is a Homicide, Continued
c. Corresponding With the Claimant or Persons Outside VA
/ Carefully word any correspondence to the claimant or persons outside VA, requesting information in connection with death by homicide, to ensure there is no inference that VA suspects or implies that the claimant or any other particular person may be guilty or implicated in the homicide.d. Handling Evidence or Information Connecting the Claimant With the Homicide
/ If there is evidence or information connecting the claimant with the homicide, develop by field examination to obtain all the facts.Important: Do not request copies of grand jury records under any circumstances, either by letter or field examination.
e. Obtaining Information From Record Testimony
/ It may be necessary to request that the field examiner review the court records to obtain pertinent information from recorded testimony at a trial as well as names of witnesses.Request transcripts of recorded testimony only in extreme cases in which the question cannot otherwise be resolved.
23. Facts To Be Considered In a Wrongful and Intentional Killing
Introduction
/ This topic contains information on the facts to be considered in a wrongful and intentional killing, including information on- death as a result of an accident
- death as a result of self-defense
- a homicide committed while insane
- determining when to request additional evidence regarding the claimant’s sanity
- determining insanity, and
- submitting the case for rating.
Change Date
/ March 7, 2006a. Death as a Result of an Accident
/ Death may be considered accidental if it can be established that the chain of circumstances causing the fatality was not set in motion for the purpose of causing death.b. Death as a Result of Self-Defense
/ It may be found that the claimant acted in self-defense and that the death occurred as a result of the claimant’s action to protect himself/herself if the evidence shows any of the following circumstances existed:- the claimant suffered an immediate fear of
incest, or
other serious bodily harm by reason of threatening acts of the deceased
- there was no logical avenue of escape or retreat for the claimant, and
- the deceased was in a position to, and had the apparent means to commit the crime.
Continued on next page
23. Facts To Be Considered In a Wrongful and Intentional Killing, Continued
c. Homicide Committed While Insane
/ If the claimant or beneficiary caused the death of the veteran or another beneficiary and it is established that such act was committed while insane, the killing will not bar the claimant from receiving death benefits.d. Determining When to Request Additional Evidence Regarding the Claimant’s Sanity
/ Use the table below to determine when to request additional evidence regarding the claimant’s sanity.If … / Then …
the question of the claimant’s sanity at the time of the killing is determined in a judicial proceeding connected with the trial on the criminal charge / accept the determination without further development.
a judicial determination of insanity is made at or before a trial without any determination as to the sanity of the claimant at the time of the killing / obtain all the evidence and information available with respect to the
- circumstances surrounding the killing, and
- mental condition of the claimant at the time of the killing.
Continued on next page
23. Facts To Be Considered In a Wrongful and Intentional Killing, Continued
e. Determining Insanity
/ Consider the claimant insane at the time of commission of the act if he or she was laboring under such a defect of reason from disease of mind or mental deficiency that he or she- did not know the nature and consequence of the act, or
- knew the nature and consequences of the act, but did not perceive the act as wrong.
f. Submitting the Case for Rating
/ If there is a question as to the claimant’s sanity at the time of the killing, submit the case to the rating activity after development has been completed.Unless reversed on appeal, the determination of the rating activity is conclusive on the question of the claimant’s sanity or insanity at the time of the killing.
Reference: For more information on insanity, see M21-1MR, Part III, Subpart v, 1.E.
24. Effect of Judicial Proceedings on a Department of Veterans Affairs (VA) Homicide Determination
Introduction
/ This topic contains information on the effect of judicial proceedings on a VA determination, including information on- the rules of evidence in criminal vs. civil cases
- VA’s authority to bar benefits based on evidence, and
- when to develop for additional evidence.
Change Date
/ March 7, 2006a. Rules of Evidence in Criminal vs. Civil Cases
/ The rules of evidence, practice, and procedure in a criminal proceeding differ from those of a civil action in the following manner, so that an adjudication in the one is not decisive as to the other:- in a criminal proceeding, guilt must be proved beyond a reasonable doubt, but
- in a civil action, the issue is determinable upon a preponderance of evidence.
b. VA’s Authority to Bar Benefits Based on Evidence
/ VA has the power to- determine guilt or innocence based on the preponderance of evidence that the accused is guilty in any given case, and
- bar the claimant’s right to benefits, if VA finds the claimant guilty, independent of any verdict in a criminal court.
Continued on next page
24. Effect of Judicial Proceedings on a Department of Veterans Affairs (VA) Homicide Determination, Continued
c. When to Develop for Additional Evidence
/ Use the table to determine when to develop for additional evidence and make a determination regarding homicide.If the claimant … / Then …
is convicted /
- do not make any further effort to develop the case, and
- accept the verdict of the court to bar entitlement to death benefits.
- is acquitted or a conviction in a lower court is reversed on appeal
- has not been brought to trial, or
- is suspected of homicide, but was never brought to trial
- grand jury
- medical examiner
- prosecuting attorney, or
- police.
25. Handling Effects of Adverse Determinations
Introduction
/ This topic contains information on the effect of adverse finding on the various classes of claimants or beneficiaries, including information on- determining the effect of a wrongful and intentional killing of the veteran
- the effect of a wrongful and intentional killing of a beneficiary, and
- the effect on accrued amounts.
Change Date
/ March 7, 2006a. Determining the Effect of a Wrongful and Intentional Killing of a Veteran
/ Use the table below to determine the effect of wrongful and intentional killing of veteran.If the veteran’s death is wrongfully and intentionally caused by … / Then …
a surviving spouse /
- deny the claim, and
- make any award of death benefits to the veteran’s children in an amount which would have been payable to them had they been the sole original beneficiaries.
a parent /
- deny that parent’s claim, and
- pay the other parent, if any, the amount which would have been payable had that parent been the sole original beneficiary.
Continued on next page
25. Handling Effects of Adverse Determinations, Continued
a. Determining the Effect of a Wrongful and Intentional Killing of a Veteran(continued)If the veteran’s death is wrongfully and intentionally caused by … / Then …
the child, and the
- surviving spouse is entitled to benefits, and
- child is in the custody of the surviving spouse
Note: The question of whether or not payment to the child might be barred because the child caused the death of the veteran is immaterial when the child is in the custody of the surviving spouse. Under such circumstances, it is the surviving spouse who is entitled and the child has no right or title to any part of such benefits.
the child, and
- the surviving spouse is entitled to benefits, and
- the child is not in the surviving spouse’s actual or constructive custody
- pay the surviving spouse the amount which would have been payable if that child did not exist, and
- determine the rates payable in awards to other children entitled to an apportioned share as though this child did not exist.
the child and the surviving spouse is not entitled to benefits /
- deny the claim, and
- increase the rates for other surviving children, if any, as though the child who did the wrongful act did not exist.
Continued on next page
25. Handling Effects of Adverse Determinations, Continued
b. Effect of a Wrongful and Intentional Killing of a Beneficiary
/ The rule that a wrongdoer may not profit by a wrongful act applies equally to a beneficiary of death pension, Dependency and Indemnity Compensation (DIC), and accrued benefits who wrongfully and intentionally caused the death of another beneficiary.The beneficiary’s entitlement as a dependent of the deceased veteran is not affected, but the dependent cannot receive any increase that is otherwise payable as the result of the other beneficiary’s death.
Use the table below for some example situations and their respective result and action.
Example Situation / Result and Action
The veteran’s child receiving death benefits wrongfully and intentionally causes the death of another veteran’s child in receipt of death benefits. / The child who caused the death cannot profit from the other child’s death.
Do not pay any increase that would have been payable because of the discontinuance of benefit payments to, or on account of, the deceased child.
The parent wrongfully and intentionally caused the death of the other parent. / The parent who caused the death is precluded from
- receiving an increase in death compensation or DIC as a sole surviving parent, or
- initially receiving the rate as a sole surviving parent.
Continued on next page
25. Handling Effects of Adverse Determinations, Continued
c. Effect on Accrued Amounts
/ The effect of adverse determinations stated in M21-1MR, Part III, Subpart v, 1.F.25.a and M21-1MR, Part III, Subpart v, 1.F.25.b for the various classes of beneficiaries apply equally to claimants for accrued amounts and lump sums payable under 38 U.S.C. 5121 and 38 U.S.C. 5502(d).Since payment of accrued amounts is governed by a succession of preferred beneficiaries, the wrongful and intentional killing of a preferred beneficiary by one in the
- next lower order of preference, bars any payment of the accrued amount to the wrongdoer, or
- same class of beneficiaries, bars the payment of an increased share.
26. Effect of an Insurance Interpleader on Claims for Other Benefits in Cases Involving Homicide
Introduction
/ This topic contains information on the effect of an insurance interpleader on claims for other benefits, including information on- deferring final determination, and
- considering the law of the court.
Change Date
/ March 7, 2006a. Deferring Final Determination
/ For death pension, DIC, or accrued amount claims, defer final determination pending submission of the case to the General Counsel, if- the claimant is also a beneficiary of insurance, and
- the evidence indicates the claimant may have participated in the killing of the person for whose death both VA and insurance benefits are payable.
b. Considering the Law of The Court
/ It is the policy of VA to give careful consideration to the findings of fact and conclusions of law of the court in determining the rights of the claimant to the benefit claimed.However, the decisions of the Secretary of Veterans Affairs are final on matters of compensation, pension, and DIC.
Reference: For more information on the effect of an insurance interpleader on claims for other benefits, see M21-1MR, Part III, Subpart vi, 6.C.9 (TBD – IV.5.10).
1-F-1